DPP v Mackie [2021] VCC 1785

3 All of the victims were high school students at the time, aged between 14 and 15. The indictment is no.K12417405, it contains three charges under s68(3A) Crimes Act 1958, as it then was, that is, in the years 1977, 1978, being charges of indecent assault upon a male person. The first charge concerns a single incident only, victim is Mr Carl Keller[1], and occurred between the 1st day of February 1977 and 31 March 1977.

4 The second charge is a rolled-up charge, comprising two such instances of the offence. It involves the victim, Josh Olsen[2] and occurred between 1 February 1977 to 28 February 1978.

5 The third charge is also a rolled-up charge, the victim in that matter being Nelson Gray[3], and comprises 50 instances of such offence. The maximum penalty for each charge is one of five years, and for Charges 2 and 3, being rolled-up charges, one sentences in the knowledge of the totality of the instances accepted by the plea.

6 Still applicable to this sentencing is s27 of the Sentencing Act. Such can be invoked in regard to these charges, provided the sentence does not exceed three years, and the requirements of s27(1A) and s27(2B) are satisfied.

7 Mr Richter accepted the prosecution opening, Exhibit A, as disclosing the facts upon which I am to sentence Mr Mackie. Mr Mackie comes before the Court with no prior offences. Mr Mackie has, however, subsequent convictions for the same charges, he was convicted of two charges in 1985 and received a good behaviour bond and made a payment to charity, and three further convictions were recorded in 1994 when, again, he received a good behaviour bond and made payments to charity. The Court was not in any way assisted from either counsel as to any circumstances or dates, or timing as to those offences. Obviously, they are not prior offences to this offending; they were provided, without objection, to the Court to assist in regard to the total circumstances relevant to a sentence, and options.

8 Given such history, the offences are such that the SORA regulations apply. Now, Madam Prosecutor, I think given that, it is a lifetime requirement, is it not.

9 Because of the subsequent offending, Mr Mackie now comes to be subject to the SORA legislation imposed by Parliament. Mr Mackie needs to be given a notice of that reporting, I think, is lifetime; is that correct?

12 MR RICHTER: They're class 2 or category 2 offences, and there's more than two of them. Yes.

14 Insofar as Charge 1 is concerned, as I said, the victim was Mr Carl Keller. At the time, he was aged 15; he is now 59. Mr Mackie, insofar as his role with Mr Keller, was both a teacher and a cadet master. Mr Keller's mother had enrolled Mr Keller in the woodwork class to assist him in hopefully getting a carpentry apprenticeship. Mr Keller was able to be so enrolled because he was a member of the Army Reserve Cadets where Mr Mackie was a captain.

15 This offending happened somewhere between February and March of 1977, so it seems that almost at the first opportunity, he was subject to attack from Mr Mackie. This came about under the pretence of fitting Mr Keller with a new uniform. In order to do this, Mr Mackie took Mr Keller to the room where he conducted proceedings in regard to the cadets, had him strip down to his underpants, and had him stand on a stool. Mr Mackie measured his inside leg. During such measurement, Mr Mackie touched his genitals, outside of his underpants, more than once. Mr Mackie pulled his underpants open and looked at Mr Keller's genitals, and made a remark 'We can't get those hot'. Mr Mackie then placed his hands on the penis and testicles of Mr Keller. It would appear, from what happened thereafter, that Mr Mackie apparently masturbated himself behind Mr Keller. Mr Keller reported the matter to his father, who confronted Mr Mackie and returned the uniform to Mr Mackie.

16 Each of the victims read their victim impact statements to the Court, which were tendered. Mr Carl Keller's statement was tendered as Exhibit B. Mr Keller speaks of the fear and embarrassment of being so treated by Mr Mackie. That as a result he suggests that he developed a stutter. Mr Keller became very wary, thereafter, of any sexual conduct. The matter, albeit the father had confronted Mr Mackie, was never further discussed at his own home. The matter finally, from what I can gather - no one has provided me with certainty about this -finally came before the Royal Commission into sexual abuse that was conducted by the Commonwealth Government, and Mr Keller described such process as cathartic. Apparently there was a civil claim; again, I do not know the circumstances in regard to that. Allegedly, Mr Mackie was arrested in 2014 as a result of these crimes; however, nothing further was done about it. Ultimately, this indictment was laid in October of 2021.

17 We then come to Charge 2, which is the charge involving Mr Josh Olsen as the victim. Mr Olsen was aged between 14 and 15 during the time. It involved, as I have said, a rolled-up charge with two instances of this offence having been committed. Mr Olsen had joined the Army Reserve in 1976 and on an occasion sometime, it would appear, early in 1977, Mr Mackie insisted on driving him home in his car. On this occasion, Mr Olsen was seated in the front seat with another adult next to him. While driving Mr Olsen home, Mr Mackie placed his hand on Mr Olsen's groin. Mr Olsen estimates that that was for a period of some 15 seconds, with accompanying laughter. Mr Olsen made a comment thereafter to the other adult.

18 The second instance occurred in January to February 1978. Under the guise of asking Mr Olsen to prepare a new time table for cadets, he was asked to stay on and work in the cadet room. Mr Olsen was then told that Mr Mackie wanted to measure him for a new uniform. The same procedure was adopted as I have already referred to in regard to Mr Keller, when an 'inner leg measurement' took place. Again, Mr Mackie pulled the young boy's underpants out and remarked on the lack of pubic hair and how young he was. Mr Mackie then proceeded to fondle his testicles and penis, and remarked on the fact that despite such fondling, Mr Olsen, as he then was Master Olsen, did not obtain an erection. Mr Olsen went home and told his mother about this, and a complaint was apparently made to the headmaster. A subsequent complaint, made by Mr Olsen and others at a later army camp, or cadet camp, led to Mr Olsen's demotion from his position as a sergeant. It should be remarked that Mr Olsen, after this assault, stayed in the cadets till the end of 1978 and there was no further abuse from Mr Mackie.

19 Mr Olsen also read out his victim impact statement, which was tendered as Exhibit D. He states that he has suffered from anger and difficulty thereafter, and difficulty adapting to male teachers. Mr Olsen had a phobia to small rooms; he developed a difficulty associating with male friends and, indeed, had some initial difficulty with dealing with his own son, that is, physically. Two years ago, he received a call from the police. It was on that occasion that he told his wife of these offences for the first time, although he has still not given the precise details of what the incidents involved. He said that he tends to try, and has tried, to bury the memories of the assaults, but it is always there.

20 We then come to the third charge, which concerns victim Nelson Gray. Again, this is a rolled-up charge, but in this instance, in the period June 1977 through to June 1978, involved some 50 instances. Mr Gray was subject to grooming and predatory behaviour by Mr Mackie after he joined the cadets in 1976. Mr Gray's parents divorced in 1977 and thereafter Mr Mackie 'counselled him'. Mr Mackie promoted Mr Gray, on a temporary basis, so that he could work in the quartermaster's store on a Tuesday night. As part of his grooming, he provided Mr Gray with pornographic magazines, as the child observed these magazines, Mr Mackie indulged in inappropriate discussions with him as to his physical reactions to such. By mid-1977, Mr Mackie was discussing the joys of masturbation with Mr Gray, and he in fact gave him a magazine, again, which had pornographic material in it, and this was the first time that Mr Mackie masturbated Mr Gray while he was reading the magazine.

21 Such masturbation occurred on many occasions in 1977, as is detailed by the terms of the plea. What usually took place was that Mr Mackie would stand behind Mr Gray and, given the observations made of the victim, it would appear that Mr Mackie was also masturbating himself at the same time. Indeed, as part of this process, Mr Gray apparently was masturbated to ejaculation for the first time in his life.

22 As part of this process of predatory behaviour, Mr Mackie ultimately had Mr Gray stand on a chair and also masturbate Mr Mackie. Such are obviously uncharged acts. Also in approximately 1978, Mr Mackie had Mr Gray watch, in this instance, a pornographic film. By this time, these incidents were occurring on a weekly basis. Ultimately, Mr Gray complained to his father, who went to the school and apparently nothing further happened until, ultimately, Mr Gray was contacted in 1995 by a solicitor who, apparently, was involved in the Keller civil case. But that is as much as I know about that.

23 In Mr Gray's victim impact statement, he remarks as to the effect on him of the abuse from a person who was both in a position of authority and trust. He describes that these offences caused him to lose personal confidence, to create a situation where he doubted himself. That he had an ongoing need to be accepted and, unfortunately, he postulates the situation that, as a result of these assaults, he had problems thereafter creating relationships. Mr Gray lived with a sense of guilt and, to use his words, thereafter, and indeed to this date, these offences have reduced his joy of life.

24 Courts in this country, in particular in this State, can rarely be sure as to the precise consequences of this form of child abuse. No doubt that is why Parliament has passed more recent legislation, specifically protecting children. At the time, of course, of the offence pleaded to, it created no discernment as to age, this indecency involved a male person.

25 Clearly, the behaviour that make up such offences varies. As said by the High Court in Ibbs v The Queen [1987] HCA 46; [1987] 163 CLR 447, 452:

'When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining that offence but on the facts of the case. In the case of sexual assault, the sentencing judge has to consider where the facts of the particular case lie on a spectrum, at one end of which lies the worst type of sexual assault, perpetrated by any act which constitutes the sexual offending'.

26 Clearly, in regard to these assaults, we are not dealing with any penetration; however, it is interesting to read of the long-term impact which we have heard in the victim impact statements, which has not been challenged in any way; even the impact from one occasion of inappropriate fondling on a child by a person in authority. I accept each of the victim impact statements, which were not challenged, as evidencing the personal impact of such crimes committed upon these victims when they were children. I thank each victim for their bravery in disclosing such to the Court.

27 I come now to consider the objective culpability of each of the charges. In general, as to each charge, they represent:

(a) firstly a grave breach of trust either in the position as teacher and/or cadet master captain. In regard to Mr Olsen and Mr Gray, Mr Mackie was acting only in the role as captain of cadets;

(b) the second general matter is the marked age differential, each of the victims were between the ages of 14 and 15. Mr Mackie at the time was aged between 38 and 39, at the last of the series of offences affecting Mr Gray;

(c) thirdly, each of the victims were subject to predatory behaviour by Mr Mackie, where he created opportunities where he could assault these young boys in his care.

28 As to Mr Olsen, the first instance is aggravated by Mr Mackie doing such act, that is, touching Mr Olsen's groin in the presence of another adult. As to Mr Gray, the culpability is aggravated by the persistent abuse carried over a period of one year. Mr Mackie clearly, in this instance, groomed an innocent child who was emerging, sexually, at a very difficult time in the family. He degraded this child by the use of both pornography and films of pornography, which he provided to the child. Albeit uncharged, in the circumstances of offending they were aggravated by him having Mr Gray masturbate Mr Mackie at the same time as he was assaulting Mr Gray. As I say, all of this exploitation took place at a time when Mr Mackie was well aware that this child was in a family whereby the parents had divorced.

29 Assessing the objective culpability, therefore, in regard to Charges 1 and 2, I assess such as mid-range for these charges. In regard to Charge 3, I asses the culpability as high.

30 Given the time since these offences occurred, there are a number of matters to be considered. The first, is the issue of delay. Sentencing practice at the time, when there has been a delay of this magnitude being some 44 years, is very difficult to ascertain. This matter was referred to in R v AMP [2010] VSCA 48, [34], where it was stated that it must be accepted that the range of sentences imposed for these charges were generally lower than the present range of sentences for similar offences. However, I am able to say, from my experience going back, to that time, that certainly the type of abuse committed by Mr Mackie in regard to Charge 3, given its persistence, would have led to Mr Mackie receiving a gaol sentence at the time of that offending.

31 The delay in completion of legal proceedings is a mitigating factor, and must, at all times, be taken as a matter of law to be a factor to be balanced in any sentence; however, as said by Vincent J in DPP v Toomey [2006] VSCA 90:

'Ordinarily, when an adult offender is to be sentenced for offences involving the sexual abuse of a young child, the principles of general deterrence and denunciation remain at the forefront of a sentencing process'.

32 In the same year as that statement, a determination was made in R v Kovac [2006] VSCA 229. The delay in that case was 27 years. At paragraph 28 Her Honour, Neave J said:

'It has been recognised that delay that is common in sentencing sexual offenders does not give an automatic right for a reduction or discount in sentence. It seems to me that this must be because delay in such cases cuts both ways. Although it may seem harsh to punish an offender for offences committed many years ago, the long delay has also affected the three victims of these offences, who have had to wait for many years for the offender's wrongdoing to be recognised and punished. It is common for child victims of sexual offences to have difficulty in telling others about the offences which have been committed against them. Often, offenders tell victims to keep the offences secret.'

[I should add, there is no evidence before me that that occurred in this case.]

'While delay is, therefore, a mitigating factor, it should not be given undue weight'.

33 Mr Richter, in this regard, submitted that the delay here was exceptional; however, as expressed by the Royal Commission and as remarked by Neave J, such is often a feature of this offending, with shame playing a huge part in victims not disclosing such offending. True it was that, Mr Mackie was arrested for the Keller incident in 2014, but apparently that did not proceed any further. There was, apparently, a pretext call conducted; however, Mr Mackie denied any wrongdoing, in the strongest terms, and confirmed that in a record of interview recorded at the time.

34 Further, when the matters of Gray were apparently put to Mr Mackie in 2018, he not only denied that, but described such as 'a lurid and false allegation'. It was, as I have said, difficult to understand where and what was the motivation for the indictment finally being filed; however, it seems clear that it is the role of the Royal Commission and, as I understand the position, the Royal Commission reference out to the police, which led to this indictment finally being laid in regard to each of these three charges on the 11th day of October 2021.

35 Mr Richter submits that his client has since 2014 had the sword of Damocles hanging over him. In my opinion, clearly that is not so. He not only vigorously denied any offending at the time of original pretext call and the early record of interview, but he no doubt had the opportunity to clear up these matters when he came before the Court in both 1985 and 1994, and pleaded guilty to similar offences.

36 One other aspect of delay, of course, is that persons can come before a Court with a subsequent clean record as to their lives thereafter, that is, they bring their otherwise well-conducted lives and their contribution to the community forward as mitigation. As I say, because of the information provided to the Court, I am unaware precisely as to when the subsequent offending happened, however, clearly Mr Mackie apparently retired as a teacher in 1985 and, as the record would show, has not been convicted of any crimes but for the subsequent matter in 1994 to which he pleaded, and according to the references set out in Exhibit 7, he has made a significant contribution to various community organisations, the Antarctic one in particular being referred to, which is known as ANARE.

37 I note, with some concern, that Mr Mackie's also made a fairly substantial contribution to the scouting movement. Dealing with a person who has not committed crimes, subsequent to these offences is, as I have said, difficult. As was set out in R v Mulvale (Unreported, Court of Appeal, Winneke P, Callaway and Hampel JJA, 20 February 1996), 275/1995, the impact of a subsequent good life is a matter that has much impact in particular on the non-parole period.

38 Mr Mackie presented to the Court, two former students testimonials on his behalf, Exhibit 7. The Court wonders if they were alerted, before they made those testimonials, to his 1985 and 1994 convictions. It appears, certainly, Mr Jenkins could not have been, as he comments, despite the guilty plea in this case, that he found it hard to believe that any such conduct was more than 'accidental'.

39 As to the stress factors which are referred to in the somewhat dated medical reports related to the time of Mr Mackie's retirement, while this may no doubt have contributed to his retirement, it seems to me the reality must have been that, given the 1985 conviction, he would no longer have had such an occupation open to him. It is of interest that none of his treating doctors seem to be aware of such convictions, as detailed in the reports in Exhibits 3, 4 and 5.

40 The result of the delay of 44 years is that Mr Mackie is now before this Court, aged 82. If I can again quote from paragraph 22, of Neave J judgment, the following was said in regard to the accused in that matter:

'The age and ill health was submitted as a reasonable basis for mercy in imposing a more lenient sentence on, in that case, the appellant than would other wise apply because of such age and ill health'.

41 In that particular circumstance, the appellant was aged 74. At paragraph 23, the following was said:

'The mitigating effects of the appellant's age and ill health must be weighed against the seriousness of the offences, their long-term psychological impact on each of the victims, the offender's gross breach of trust in engaging in sexual acts with young boys in his care, and the principles of general and specific deterrence'.

42 In Exhibit 2, the psychiatrist Dr Handsjuk stated that, insofar as the physical attributes of Mr Mackie are concerned, that he was hunched over, frail, and uses notes to supplement his memory. Apparently he has for some time had an autism spectrum disorder, and it would appear that he has had that all his life, if one looks at the report in Exhibit 4 from Dr Shahbaz. Mr Handsjuk labels that autism spectrum disorder as Asperger's syndrome, which apparently in Mr Mackie leads to anxiety in regard to interpersonal relationships. He has apparently coped with this, according to the medical reports, for over 30 years by the use of the drug Oxazepam. Mr Mackie has a history of anxiety; this is certified by the relatively dated medical reports of 1994, set out in Exhibit 3, which is described, curiously, as 'GAD: global anxiety disorder', which is coped with, apparently, by physical activity, he was an active long-distance runner, by his club activities, community activities and by socialising. The doctor makes the point that, given his older age and circumstances, such ability to cope is now limited.

43 Mr Handsjuk speculates that imprisonment may lead, in future, to a development of depression, and certainly takes the view that gaol may result in the anxiety of which Mr Mackie suffered, escalating. Mr Richter, in his submissions, spoke of a possible risk of cancer relapse. I did not find any reference in any of the medical reports to that situation. They were the only up-to-date reports that the Court had. While no doubt gaol will not be easy for an 82-year-old, I see no reason why Mr Mackie cannot continue to receive his ongoing treatment to keep his anxiety under control, as he has for many years, if such is prescribed by a psychiatrist and a general practitioner. Mr Richter questioned this situation in gaol; it seems to me, however, despite the concern expressed, that with proper conditions and precautions taken, such treatment can be ongoing. While I take into account and certainly weigh the impact upon a person of his age, of jail, and I accept the principles 5 and 6 of Verdins in regard to Mr Mackie, I find neither his general health nor any anticipated impact upon him in gaol as to his health, is so exceptional that a gaol sentence should not be passed in this case.

44 Mr Richter, in his plea, set out the written basis of such plea in Exhibit 1, which was tendered. He referred to the plea of guilty and the discount that must always follow from such a plea, and I give to Mr Mackie an appropriate discount. It is noted that the plea was made at a relatively early date, subsequent to the filing of the indictment which, as I have said, was served on 10 October 2021. Mr Richter also referred to Worboyes v R [2021] VSCA 169 [39], where, given the current situation that the Courts have to conduct proceedings, and the delays, persons who plead in these times should and are given greater weight by way of mitigation for such pleas, and such pleas lead to a more pronounced amelioration of their sentence, both of which principles I take into account on Mr Mackie's behalf.

45 Mr Richter took me to Mr Mackie's age and health, and referred to the medical reports, that I have indicated. Mr Richter makes the point that, prior to these offences, Mr Mackie had no priors. But he comes before the Court - clearly as to his subsequent matters he cannot come before the Court now, with a good character - but he does come before the Court with a community contribution which has been attested to by the references that I have referred to. He has also encountered the delay that I have referred to in particular. Mr Richter, in his plea, accepted, given the severity of the offending, that gaol was an appropriate sentence; however, in the totality of the circumstances put to the Court, he submitted that a wholly suspended sentence of such period of imprisonment would be appropriate.

46 Ms Pillai, on behalf of the prosecution, tendered a written prosecution sentencing submission, Exhibit E. To use her words, in a spirit of resolution, she submitted on behalf of the Director that one of the sentencing options that is acknowledged as being open by the Director was a wholly suspended sentence. As Ms Pillai indicated to the Court, it was necessary for the Court to take into account, in considering such a determination, the provisions set out, that I have already detailed. Ms Pillai indicated, given the type of crime, that general deterrence and denunciation are most important principles, as indeed is punishment. I accept that specific deterrence is not such an important factor. As to rehabilitation, I have already made the point as to Mr Mackie's conduct since he has retired as a teacher, the community contribution he has made. Given this type of offending, one takes the view that it would be a very unlikely that he would be placed in a position where such offending could occur again.

47 I was provided with a number of cases of sentences in this Court; they clearly are factually quite different, DPP v Beasley [2021] VCC 310 and DPP v Elmer [2021] VCC 146. One resulted in a suspended sentence, one didn't. They are obviously determined upon their own facts, but as the authorities indicate, they are yardsticks which this Court can take into account in sentencing. In the end, of course, as said by the High Court in DPP v Dalgliesh [2017] 91 ALJR 1069, 1075, Mr Mackie is entitled to an individualised just sentence based upon the facts of these three charges, and that is what I intend to give him.

48 You can stay seated, Mr Mackie. You will be convicted of all charges. On Charge 1, you will be sentenced to imprisonment for six months;

51 I order that the base sentence should be the sentence pronounced in regard to Charge 3, making the base a sentence of 18 months. I order that two months of the sentence imposed in Charge 1 and three months of the sentence imposed on Charge 2 be served cumulatively upon each other and upon the base sentence, making a total effective sentence of 23 months imprisonment.

52 I further order that the non-parole period that is, the period of gaol you must serve before being eligible for parole, is 13 months.

53 It is necessary, Mr Mackie, for me to explain to you the effect of your plea of guilty. It is difficult in cases such as this, were there are so many factors that had to be taken into account, to comply with the requirement of Parliament; however, doing as best I can to give you an indication of the worth of your plea, can I indicate to you that had you not pleaded guilty the sentence that you would have received from the Court is not one of a total effective sentence of 23 months with a minimum of 13 months to serve; but had you not pleaded guilty, you would have been sentenced to a period of 30 months with 20 months to serve.

54 If I could give you the notice to give to your client, Mr Richter. The sexual reporting provisions, of course, I make no order; they all come about as a result of the Act of Parliament, and the notice I am required is to simply indicate to your client his obligations under that Act.

56 HIS HONOUR: I assume those obligations don't begin until he is released from gaol.

58 HIS HONOUR: Either Mr Richter or Ms McVean, any issues or clarifications that's required in regard to the sentence?

62 HIS HONOUR: Mr Richter, do you want to talk to your client?

63 MR RICHTER: Yes. I'll need to briefly. Yes, thank you.

64 HIS HONOUR: I think it's probably going to be easier, because he's isolated, that I give you that opportunity now.

66 HIS HONOUR: Officers, do you mind? It's not a normal situation in this Court, but because of the Covid situation, I think if we allow Mr Richter to talk to his client now, and then it's not a situation where he's got to go down to the cells.

68 HIS HONOUR: You're happy with that? Okay. Well, I'll leave the Court and, Mr Mackie, once you've spoken to your counsel, you'll go down to start to serve your sentence. Yes.

[1] Pseudonym used. Throughout these reasons pseudonyms have been used to ensure that there is no possibility of identification.